This is a preview of subscription content, log in via an institution to check access.
Notes
I take no view here on whether and how to enforce such a duty. For an argument in favor of internal regulation, see (Miller and Wright 2008).
I do not mean to imply that every case of violence between brothers is necessarily domestic violence in its weak sense and can never constitute domestic violence in its strong sense. That said, it strikes me as unlikely that many cases of violence between brothers would be the sort that tends to sustain and perpetuate patriarchy. If my hunch is right, then such a case would constitute domestic violence in its weak sense—no matter what degree of physical violence is involved.
In discussing what declining to target domestic violence in its weak sense might entail, the only example I gave was the parenthetical “(eg, by dismissing pursuant to victims’ requests in such cases).” While, of course, I intended the “eg” to signal that there are other methods by which a prosecutor might decline to target such cases, I did not take the opportunity to expound upon those other methods.
I do not mean to present targeting and declining to target as the only two options available to prosecutors when deciding how to handle a case. Indeed, while I do not recommend it as a justifiable exercise of discretion, it is conceivable that prosecutors might pursue cases in an arbitrary fashion, neither targeting nor declining to target any particular set of cases.
Non-arrest police reports are written by police officers to track incidents where an arrest has not (yet, anyway) been made. In some incidents, the arrest was not made because the suspect had fled the scene prior to the police officer’s arrival; in others, an arrest was not made because there was not probable cause that any criminal offense had been committed; in still others, there was probable cause, but the police officer on the scene exercised his or her discretion to decline to make an arrest. In jurisdictions that have adopted so-called “mandatory arrest” policies, the third option is meant to be foreclosed to police officers. For an insightful discussion of such policies, see (Goodmark 2012).
I do not take this last point to negate the value of attempting to disaggregate the cases. On the value of attempting, see my discussion of telic value at (Dempsey 2009, pp. 65–67).
Of course, in cases where there was no probable cause to believe that an offense was committed, we declined to charge irrespective of whether the case involved the indicia outlined in the policies.
On the distinction between prosecutorial pursuit and non-pursuit actions, see (Dempsey 2009, pp. 53–54).
Consistent with the policies, such a case could of course be aggressively prosecuted; although it might be handled by a different, non DV-specific prosecution unit. A policy that prioritizes cases for prosecution by a DV Unit does not speak to the issue of whether cases that fall outside the DV Unit’s remit should be aggressively prosecuted by another prosecution unit.
In an early draft of the book, I included a rather long and boring analysis of character traits, in which I noted that my account of patriarchy maps onto the view that feminism is something akin to a virtuous mean, with patriarchy and misandry constituting the vicious extremes. For the sake of simplicity, I dropped this discussion rather early in the redrafting process.
Although, that said, it seems that those who are most likely to reject the usefulness of the concept of patriarchy, or closely related concepts, are also those most likely to be urging us to “take a break from feminism” (Halley 2006). By and large, it seems clear that most self-described feminists do tend to find patriarchy or closely related concepts to be useful. As the first line of the basic overview of Feminist Legal Philosophy in the Stanford Encyclopedia of Philosophy observes, “Feminist philosophy of law identifies the pervasive influence of patriarchy on legal structures, demonstrates its effects on the material condition of women and girls, and develops reforms to correct gender injustice, exploitation, or restriction” (Francis and Smith 2009, 2013).
On how this point of view can be understood in relation with other points of view that are concerned to act against intersecting wrongful structural inequalities, see (Dempsey 2009, pp. 129–135).
That said, I must confess to finding a great deal of postmodern legal and philosophical scholarship obscure. As such, I often find it difficult to engage with this body of literature. The passage from Schwartz and Friedrichs (1994: 231) quoted by Cowan is illustrative: “A key point is that postmodernism suggests it is more liberating to empower ‘victims’ (an imposed category?) of ‘violence’ (an imposed category?) to reconstitute the meaning of violence they experience than to impose on them a critical interpretation (e.g., ‘knowledge’, ‘truth’, ‘social policy’) of this violence.” Honestly, with so many scare quotes and question marks, I find it difficult to understand what the authors think this particular “key point” of postmodernism means.
On a side note, while I find much of value in Tadros’s account of the distinctiveness of domestic abuse (or domestic violence, as the case may be), I find it incomplete insofar as it focuses on repetitive nature of the abuse or violence and fails to account for any considerations of patriarchy, gender, structural inequality, etc. Like Cowan, “it is not clear to me that individual acts or several isolated acts over a long periods of time can never support patriarchy”—and if they do indeed have a tendency to sustain or perpetuate patriarchy, then I would understand them as domestic violence in its strong sense.
For a classic study comparing the impact of torture to violence against women, see (Hermann 1992).
The offense need not be labeled “domestic violence,” of course. Instead, it may simply be labeled “battery.” On whether a nominate offense is called for, see (Tadros 2005).
The cantankerous defense attorney’s response was unforgettable: “No thanks, I don’t do laundry.”
References
Dempsey, M.M. (2009). Prosecuting Domestic Violence: A philosophical analysis. Oxford: Oxford University Press.
Elliot, P. (2008). Shattering Illusions: Same sex domestic violence. Gay and Lesbian Social Services, 4(1), 1-8.
Francis, L. and Smith, P. (2009, 2011). Feminist Philosophy of Law, in Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/feminism-law.
Goodmark, L. (2012). A Troubled Marriage: Domestic violence and the legal system. New York: New York University Press.
Halley, J. (2006). Split Decisions: How and why to take a break from feminism. Princeton: Princeton University Press.
Hart, B. (1986). Lesbian Battering: An Examination, in Naming the Violence: Speaking Out About Lesbian Battering. Lobel, K. (ed.) Seal Press.
Hermann, J. (1992). Trauma and Recovery. New York: Basic Books.
Miller, M. and Wright, R. (2008). The Black Box. Iowa Law Review, 94, 125–196.
Robson, R. (1990). Lavender Bruises: Intra-lesbian violence, law and lesbian legal theory. Golden Gate University Law Review, 20(3), 567-591.
Raz, J. (1986). The Morality of Freedom. Oxford: Oxford University Press.
Schwartz and Friedrichs (1994). Postmodern Thought and Criminological Discontent: New metaphors for understanding violence. Criminology, 32(2), 221–246.
Smart, C. (1989). Feminism and the Power of Law. London: Routledge.
Tadros, V. (2005). The Distinctiveness of Domestic Abuse: A freedom based account. Louisiana Law Review, 65, 989–1014.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Dempsey, M.M. Response to Commentators. Criminal Law, Philosophy 8, 557–567 (2014). https://doi.org/10.1007/s11572-014-9319-0
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-014-9319-0